Nationwide Mut. Ins. v. Gingrich

17 Pa. D. & C.5th 90, 2010 Pa. Dist. & Cnty. Dec. LEXIS 505
CourtPennsylvania Court of Common Pleas, Berks County
DecidedJune 21, 2010
Docketno. 09-2266
StatusPublished

This text of 17 Pa. D. & C.5th 90 (Nationwide Mut. Ins. v. Gingrich) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Berks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nationwide Mut. Ins. v. Gingrich, 17 Pa. D. & C.5th 90, 2010 Pa. Dist. & Cnty. Dec. LEXIS 505 (Pa. Super. Ct. 2010).

Opinion

SCHMEHL, P.J,

— Petitioner/appellant Nationwide Mutual Insurance Company (“appellant”) appeals from this court’s December 28, 2009 order, which denied appellant’s petition to vacate revised arbitration award, and ordered that the revised order of the arbitrator, dated January 30, 2009, was thereby confirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant commenced the present action by filing with this court, on February 27, 2009, a “petition to vacate revised arbitration award issued January 30,2009, together with application, pursuant to 42 Pa. C.S.A. §7342(b), for confirmation of arbitration award issued September 17, 2004” (“the petition”). In the petition, appellant described the underlying action. The underlying action began when respondent/appellee Scott Gingrich (“appellee”) commenced an action against appellant, docketed with this court at 02-10292 (“the 2002 action”). Therein, appellee sought recovery of medical and wage benefit claims and other damages under a motor vehicle insurance policy issued by Nationwide, following a motor vehicle accident in early 2001, and which resulted in alleged spinal injury to appellee.

After the 2002 action was commenced, both parties entered into a release that memorialized their j oint decision to resolve the matter at high/low arbitration (“the release”). Therelease, dated January2004, designated Richard Orwig, Esquire as the arbitrator (“arbitrator Orwig”). The release terms specified that arbitrator Orwig would enter separate verdicts on all claims for wage benefits and outstanding medical bills, together with reasonable and recoverable attorney fees and interest under the MVFRL. The release [93]*93also delineated a number of rules and stipulations to apply to the arbitration before arbitrator Orwig.

Following arbitration held March 5, 2004, Arbitrator Orwig issued a detailed arbitration decision on September 17,2004 (“ArbitrationDecision”). The arbitration decision went through the basis for the decision, including the parties’ respective positions, factual background, witness reports, testimony given, the injury itself, and an explanation of the medical facts and behavior of appellant, all of which led to arbitrator Orwig’s decisions. The arbitration decision made the following three conclusions:

1) (Appellee) is entitled to receive and the (appellant) ordered to pay all past medical expenses incurred as of April 4, 2002. No determination is hereby being made as to future medical expenses as the determination of reasonableness and necessity cannot be made based upon the limited medical documentation provided.
2) (Appellee) is entitled to receive and (appellant) is ordered to pay lost wage benefits commencing February 1,2002 through May 14,2002, to be calculated pursuant to a twenty (20) hour work week.
3) The (appellant) had a reasonable foundation for disputing claimant’s demand for wage loss and medical benefits. The (appellant) did not act in bad faith, and therefore, there is no award for attorney’s fees, expenses, and interest.

See Exhibit “B” to the petition, filed February 27, 2009.

Three days after the issuance of the arbitration decision, on September 20, 2004, appellee sent a letter to arbitrator Orwig, requesting that he reconsider the decision. Appellee [94]*94based the request on three main reasons. First, under the release, the parties had agreed that if arbitrator Orwig found there was wage loss, then the wage loss would “consume the remainder of the wage loss benefits under (appellee’s) policy with (appellant)”; however, arbitrator Orwig had awarded wage loss benefits through May 14, 2002, an issue not submitted for consideration. Second, appellee stated that arbitrator Orwig overlooked a piece of the evidence submitted, namely that Dr. Krassen had not provided work restrictions on the appellee, whereas that expert actually did, in his report, state that the appellee would have to likely permanently reduce his work from 75 hours weekly, down to 40 hours weekly of light duty. Third, appellee stated that arbitrator Orwig did not decide the issue of medical expenses and treatment as it was submitted to him, in that certain treatment was statutorily mandated to be paid by appellant, as were interest and attorneys’ fees.

Arbitrator Orwig held conference October 20, 2004 with both parties to discuss the import of appellee’s letter. Arbitrator Orwig memorialized the conference outcomes that same day in a letter to both parties. The letter rephrased appellee’s grounds for the reconsideration, and reiterated that appellant had already established his objections to the reconsideration requests. The letter further indicated that, as previously discussed, appellant was to formally respond to the request for reconsideration, and that arbitrator Orwig would then issue a decision on the reconsideration by November 17, 2004. There was no follow up written response by appellant which raised any substantive response to the request for reconsideration, although appellant sent a letter on October 29,2004 which asked for another hearing, seemingly duplicative of the [95]*95one just held.

A year later, counsel for appellee sent another letter to arbitrator Orwig, asking for a decision on the reconsideration. It was in response to this letter that appellant then sent his next correspondence, wherein stated that appellee had not made sufficient motion for reconsideration, despite appellee’s letter three days after the decision, and appellant asked for a dismissal of the reconsideration request. A virtually identical pair of correspondence was sent just over another year later, in February of 2006.

The next notable event in the arbitration took place on March 10, 2008, where appellee again asked arbitrator Orwig for a decision on the reconsideration request. Appellant sent a responsive letter on March 18, 2008, stating that the arbitrator had never granted reconsideration, although this court notes the conference held October 2004 and correspondence surrounding same. Appellee further wrote arbitrator Orwig on April 24, 2008, again asking for a decision on the reconsideration.

On May 30, 2008, arbitrator Orwig held another conference, this time by telephone, with both parties. Subsequently, appellee renewed the request for a decision on the reconsideration by letter on June 4, 2008, which repeated the requests contained in the September 20,2004 letter. Arbitrator Orwig then wrote a reply, indicating that he believed he had in his files sufficient materials to finally issue his decision on the reconsideration. Appellant then sent a responsive letter on June 11, 2008, stating that the request for reconsideration was not timely, but if arbitrator Orwig did find it to be, then reserving the right to reply on the merits at some future time, despite the [96]*96chance to do so within the same letter, the multiple chances to reply at previous conferences, and Arbitrator Orwig’s recommendation to do so in his October 20, 2004 letter. Appellant sent a similar letter again on June 17, 2008.

Finally, arbitrator Orwig did issue a revised arbitration decision on January 30, 2009, albeit several years after the original decision. Appellant then acted and filed its February 27, 2009 petition. The revised arbitration decision made the following holdings:

A. Unpaid medical bills would be paid by nationwide, as well as interest;

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Bluebook (online)
17 Pa. D. & C.5th 90, 2010 Pa. Dist. & Cnty. Dec. LEXIS 505, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nationwide-mut-ins-v-gingrich-pactcomplberks-2010.